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TMI Blog1972 (6) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... treet, on the authority of warrants of authorization issued under section 132 of the Act. After the search, the officers seized a large number of books, documents and papers belonging to the first respondent. Some of the documents seized were returned to the first respondent on February 8, 1966 some further documents were returned on February 10, 1966, and again on February 16, 1966. It is common case that certain other documents and papers are still being kept by the revenue and have not been returned to the first respondent in spite of demands. Aggrieved by this decision, the first, respondent obtained a rule nisi for appropriate writs and orders directing the return of the books, documents and records. This rule was made absolute by a judgment and order dated January 9, 1970, against which this appeal has been preferred. Section 132(8) of the Act provides that books of account and other documents which have been seized under section 132(1) of the Act shall not be retained for a period exceeding 180 days from the date of seizure, unless reasons for retaining the same are recorded by the Income-tax Officer in writing and the approval of the Commissioner is obtained for such reten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion made under the Jammu and Kashmir Preventive Detention Act. The petitioner, in that case, was arrested under an order made by the State Government. He duly submitted his representation and thereafter made an application to the State High Court under section 491 of the Code of Criminal Procedure. The State Government had reviewed the, case of the petitioner under section 4(2) of the said Act in consultation with a person nominated for the purpose and was satisfied that the detention should continue. During the pendency of the habeas corpus petition, the State Government made the order continuing the detention. Thereafter, orders were made extending the petitioner's detention from time to time. A second petition by the petitioner under section 491 of the Criminal Procedure Code was also dismissed. The contention on behalf of the petitioner that the order of detention must be communicated to the petitioner was rejected. It was further hold that failure to communicate the order does not make the detention illegal. This decision, in our view, is of no assistance to the appellant in this case, because the provisions in section 14 of the Jammu and Kashmir Preventive Detention Act are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention. Therefore, it was argued that the law authorised the department to detain the books beyond the limited period on fulfilment of two conditions and where an order approving such detention was made by the Commissioner, such an order would not be a valid and lawful order until it was communicated to the party affected. In support of this contention counsel for the respondent relied on an unreported Bench decision of this court in Matter No. 257 of 1967 (I.T Rao v. Bilahute Bhudan Bag). That was, however, a case of search and seizure under section 110 of the Customs Act, 1962. Under section 110 of the Customs Act, the customs authorities are required to return the goods seized upon expiry of 6 months from the date of seizure unless a notice under clause (a) of section 124 of the Act is served in the meantime. The goods however, may be detained beyond the period of 6 months although a notice under section 124(a) had not been served provided the Collector of Customs extends, the period by an order made and sufficient cause is shown in terms of the proviso to subsection (2) of section 110 of the Act. The customs authorities contended that an order was made by the Additional Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an order as soon as it is drawn up and signed. It does not become an effective and valid order until it is served upon the party affected. If it is allowed to remain in the office file without being communicated to the party affected, it could never acquire the character of a valid order under the statute which authorised the making of such an order. should not be understood, however, to say that all orders made under a statute of whatever descrip tion must be published and communicated. The requirement of communication arises only when a party is likely to be deprived of his right to property or is likely to be otherwise prejudiced by the order. Before proceeding to consider the next contention of the counsel for the appellant, I should refer to another decision of the Supreme Court, on which reliance was placed by counsel for the respondent on this point, namely, Commissioner of Income-tax v. Jawahar Lal Rastogi. That decision is, however, an authority for the proposition that, in exercise of' the powers under section 32 of the Act, indiscriminate search and seizure cannot be carried out by the department. It is also an authority for the proposition that detention of all books an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Board for return of the books to him. This statutory right would be completely denied to the party legally entitled to the books if he is not told when the order of approval was made and for what length of time. In considering a question such as this, due regard must be paid to the object sought to be attained by the statute. The legislature clearly intended that the party legally entitled to the books must have an opportunity of agitating his grievance against the order of retention approved by the Commissioner, by an application to the Board, and difficulties of serving the notice upon the person affected, which may not be real in most cases cannot, in my view, be set up to deny and defeat the statutory right to a person legally entitled to the books. A good deal was sought to be made out of the question that the person legally entitled to the books who has been given a right to apply to the Board under sub-section (10) may not be the person from whose custody the books have been seized. It was argued that it will be impossible to the authorised officer to determine who is the person legally entitled to the books as he has no power to determine a dispute with regard to the owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the prescribed period, required a judicial or quasi-judicial approach. It was submitted that the order of the Commissioner giving approval was not an administrative or executive order which could be made by him without hearing the party who is likely to be affected by the order. It was further argued that the provision, that reasons for retaining the books should be recorded by the authorised officer and these reasons must be valid and relevant for the purpose for retention of the books beyond the period of 180 days (sic). The statute provided, it was argued, that valid and relevant reasons must be recorded before the Commissioner could give his approval to the retention of the books beyond a prescribed period and such reasons should not be arbitrary and irrelevant. The authorised officer, it was further argued, must apply his mind to the necessity for retention of the books beyond the prescribed period and must record some valid reasons to justify retention beyond the prescribed period. It was next contended that the party affected by the order of retention should be heard on the question of requirement for retention beyond the prescribed period and for that purpose he should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e person concerned of being beard. Again, in subsection (12) it is provided that on receipt of an application under sub-section (10), or on receipt of an application under sub-section (11), the notifying authority may, after giving the applicant an opportunity of being heard, pass such orders as it thinks fit. The legislature, therefore, has provided for an opportunity of being heard being given to a party whenever such an opportunity is intended to be given. But there is no such provision in sub-section (8) requiring the Commissioner to give an opportunity of being heard being given to the party before making an order approving the retention of the books beyond the prescribed period. It is clear that Parliament has deliberately left out any such provision of opportunity of being heard given to a party in sub-section (8) and this omission should not be lost sight of, nor should it be ignored in dealing with the contention of the respondent that the order of approval is bad as no opportunity of being heard was given to him before it was made. On this question, reference remains to be made to a decision of the Supreme Court in S. Narayanappa v. Commissioner of Income-tax. In that cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quasi-judicial approach in giving his order of approval to the retention of the books. On the other hand, it seems to us that the order of the Commissioner in giving the approval is nothing but an administrative order and the respondent is not entitled to a show-cause notice or to an opportunity of being heard before the Commissioner makes the order approving retention of the books beyond the prescribed period. I must emphasize that, in this case, the two significant features are, firstly, that the statute has clearly provided for an opportunity of being heard being given to a party in some of the other sub-sections of section 132 and no such provision has been made in sub-section (8). Secondly, the statute does not require that the reasons recorded by the authorised officer should be communicated to the party affected by the order, nor that such a party should be heard by the Commissioner before he made the order approving the retention of the books beyond the prescribed period.
For the reasons mentioned above, this appeal fails and is accordingly dismissed. There will be no order as to costs.
A. K. SINHA J.-I agree.
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